I am writing to respectfully request that the Department provide the courtesy of a written response to my letter to you of June 7, 1999, regarding the serious competition policy concerns that are raised by your delegation to the Postal Service of additional authority to enforce wire and related electronic communication laws.

Unfortunately, a six-month period without any written response whatsoever is consistent with the poor response time to the Subcommittee's correspondence with the Department during the past five years.

Please provide a full and detailed written reply to the June 7 letter no later than Monday, December 6, 1999. If the Department fails to respond by this deadline, I will request the full Committee on Government Reform to take appropriate action.

Thank you for your Department's response to my October 13, 1998 letter regarding the delegation to the Postal Service of additional authority to enforce wire and credit card fraud laws. Copies of both letters are enclosed for your reference.

While your Department's response clearly explained the legal grounds for the decision to expand the Postal Service's law enforcement authority, it overlooked my concerns about the effect of such a delegation on fair competition between the Postal Service and private industry for the provision of various electronic products and services. Note that your Department's response states that the Postal Service's plans to offer electronic commerce products and services were "not especially important to the Department's analysis."

I find this position difficult to reconcile with the government's interest in fair competition. A Postal Service with the authority to itself enforce criminal wire and credit card fraud laws would, I believe, have an unfair advantage over private sector suppliers of electronic products and services, who obviously lack similar authority.

I would appreciate a written follow-up response explaining this delegation of law enforcement authority in light of the government's interest in fair competition, given the fact that the Postal Service may soon be competing with private industry in this field. I would especially appreciate the input of the Department's Antitrust Division.

CC:

The Honorable Joel I. Klein, Assistant Attorney General, Antitrust Division
William J. Henderson, Postmaster General

I am writing to respond to your letter dated October 13, 1998 to the Attorney General regarding the Postmaster General's request for a delegation of investigative authority to the Postal Inspection Service. The Attorney General had already signed the requested delegation on October 9, 1998 when you wrote your letter.

Under the authority of 18 U.S.C. Section 3061 (b) (2), the Attorney General may delegate investigative jurisdiction for specific federal crimes to the U.S. Postal Inspection Service when she determines that "violations of such laws have a detrimental effect upon the operation of the Postal Service." The Postmaster General specifically requested investigative jurisdiction under this provision for violations of 18 U.S.c. Section 1029 (access device fraud); Section 1030 (computer fraud and abuse); Section 1343 (fraud by wire, radio, and television); and Section 2701 (unlawful access to stored communications).

When the proposed Delegation was forwarded from the Postal Service to the Department of Justice, it was accompanied by two previously signed Memoranda of Understanding--one between the Director of the FBI and the Chief Postal Inspector and a similar agreement between the Chief Postal Inspector and the Director of

Postmaster General Henderson signed the proposed delegation on August 18, 1998 and the Postal Inspection Service sent it to the Department of Justice for the Attorney General's consideration. The supporting memoranda of understanding that accompanied the delegation had been signed as follows: by the Chief Postal Inspector on May 28 and June 17, 1998; by the Director of the Secret Service on June 24, 1998; by the Director of the FBI on June 10, 1998.

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the U.S. Secret Service (which shares general jurisdiction with the FBI for Section 1029 and parts of Section 1030).

The U.S. Postal Service sought this delegation on behalf of the Postal Inspection Service because the systems by which the Postal Service processes the mail, accounts for revenues, sells postage, and manages personnel and property are increasingly electronic. In requesting the delegation, the Postal Service also pointed to its current communications systems that validate and deliver electronic messages. While the Service also explained that it intends to greatly expand its electronic services to include an "electronic postmark" and secure payment systems, these plans were not especially important to the Department's analysis. Indeed, criminal attacks against existing Postal computers could injure the Postal Service as much or more than any attack against conventional mail. Thus, the Postal Inspection Service's request for expanded jurisdiction was a logical extension of its existing jurisdiction to defend its systems and services.

The Delegation's two MOUS--which create mutual obligations to share relevant information, coordinate investigative strategy, and resolve disputes--were the result of long and careful negotiation among the three criminal investigative agencies. However, while the FBI and the Secret Service are the only two federal agencies with general jurisdiction over computer crimes, many other federal criminal agencies investigate computer crimes directed against their own systems and services. These include the Department of Defense (Defense Criminal Investigative Service, Air Force Office of Special Investigations, Naval Criminal Investigative Service, and the Army Criminal Investigative Service) and other federal agencies such as NASA and the Department of Energy acting under the criminal investigative authority of their Inspectors General. In this regard, the delegation merely puts the Postal Inspection Service on the same footing as these other criminal agencies.

While more federal agencies are developing the ability to investigate electronic crimes against their own networks, it becomes more important than ever for these criminal agencies to integrate their efforts, as you quite correctly suggest in your letter. This investigative cooperation was the purpose of the two MOUS described above, which refer extensively to the National Infrastructure Protection Center (NIPC), a multi-agency investigative coordination center directed by the FBI. In fact, the President, in Presidential Decision Directive 63, designated the NIPC as the lead coordinating entity in the investigation of federal computer crimes. This national plan, in which the Postal

Indeed, the Inspector General of the Postal Service would have the same general criminal jurisdiction.

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Inspection Service now plays a role, accomplishes two things: it employs the full resources of federal law enforcement in defending the nation's critical information systems while improving the agencies' ability to work together to their best advantage.

In your letter, you inquired whether the Department of Justice determined whether or not this grant of investigative jurisdiction would confer an "unfair competitive advantage on the Postal Service." However, as you know, the Postal Service is a creation of federal law, and the delegation statute in question, 18 U.S.C. Section 3061 (b) (2), directs the Attorney General to consider whether the specified crimes would have a "detrimental effect upon the operation of the Postal Service." She is not instructed by the statute to evaluate commercial interests or other non-investigative factors.

In reviewing this request from the Postmaster General, the Department of Justice recognized two important elements: 1) the Postal Service's interest in its own electronic systems and services is as valid as its authority over its corporeal property; and 2) the Postal Service was able to reach balanced coordination agreements with the FBI and Secret Service--the investigative agencies with general criminal jurisdiction over

these matters.

The Department of Justice agrees with the President's Commission on Critical Infrastructure Protection that protecting important information systems in the United States must become a high federal priority. Moreover, this is a huge and difficult task, and we cannot afford to turn away federal law enforcement agencies ready to contribute to this mission.

'You inquire in your letter whether the Department has "considered the impact of delegating this federal law enforcement authority only to the Postal Service and not to other providers of e-mail and electronic communications." As noted above, many federal agencies, such as DOD and NASA, already have both inhouse communications providers and in-house law enforcement authorities with jurisdiction to investigate--in accord with strict criminal procedure--any computer crimes directed against those systems or services. However, the Attorney General could not, under this or any other statute, designate non-agent communications providers themselves--whether public or private-to conduct law enforcement investigations of any kind. Indeed, this distinction between rules governing communications providers and those controlling law enforcement agents (even within the same agency) lies at the heart of the Electronic Communications Privacy Act, 18 U.S.C. Sec. 2701 et seq.